32 PROCTOR | August 2016
Confidentiality,
competency and
the retainer – an
ethical teaser
I act for an elderly client who is
charged with indictable offences.
I have seen the client on a couple
of occasions.
At each interview the client has said that he
and his mates have weapons which could
cause damage to the police. I am concerned.
I think that the client is an angry man. He seems
frustrated; on occasions he appears agitated
and sometimes seems to be confused.
Can I disclose my concerns? Can I terminate
my retainer? Should I be concerned about
his competency?
Imminent physical harm exception
When considering the possibility that a
client may harm themselves or others, we
must recall that our duty of confidentiality is
absolute, unless we can identify a permitted
exception under Rule 9.2 of the Australian
Solicitors Conduct Rules 2012 (ASCR) to
disclose such information. The obligation
of confidence arises in contract, equity
and under the ASCR – it aims to ensure we
preserve the client’s confidences, so that we
can render effective legal services to the client.
Our duty of confidentiality must be
distinguished from the evidentiary rule of
client legal privilege. The ethical rule is wider
and applies without regard to the nature or
sources of the information or the fact that
others may share the information.
We owe the duty of confidentiality to every
client, without exception, and whether or
not the client is a continuing client or casual
client. This duty survives the professional
relationship, and continues indefinitely
after we have ceased to act for the client.
Generally we should not disclose having
being consulted or retained by a particular
person about a particular matter unless the
nature of the matter requires such disclosure.
Rule 9.2 does provide a permitted exception;
we can disclose information for the purpose
of preventing imminent serious physical harm
to our client or to another person. This is an
exceptional situation; we need to be satisfied
that imminent serious physical harm is going
to occur and needs to be prevented.
We must remember that, if we do exercise
the discretion to disclose, we should not
disclose more information than is required.
In assessing whether disclosure of the
confidential information is justified to prevent
imminent serious physical harm, we should
consider a number of factors, including:
a. the likelihood that the potential injury
will occur and its imminence, and
b. the circumstances under which we
have acquired the information.
How and when disclosure should be
made under this sub-rule will depend on
the circumstances. If confidential information
is to be disclosed under this exception, then
we should prepare a written note as soon
as possible, which should include such
things as the:
a. the date and time the disclosure was made
b. the grounds relied on to make
the disclosure
c. the details of the harm the disclosure
was intended to prevent
d. the identity of the person to whom
the disclosure was made
e. the content of the disclosure and how
it was disclosed.
Introducing
PAUL WILLIAMSON –
Specialist Titles Office Consultant
Paul can assist in all:
• titles office requisitions;
• complex transmission applications;
• caveats;
• easements;
• community titles schemes;
• subdivisions;
T0737209777•M0417717759
paul.williamson@athertonlawyers.com.au
PO Box 4172, St Lucia South, Brisbane Q 4067
www.athertonlawyers.com.au
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